Complainant

Respondent

Anonymised Parties

Kitchen Porter

Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00019233-001

17/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00019233-002

17/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00019233-003

17/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019233-004

17/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019233-005

17/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019233-006

17/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019233-007

17/05/2018

The complainant was employed as a Kitchen Porter in the restaurant operated by the respondent.   Her employment, which was part-time, commenced in September 2017 and terminated in April 2018. The complainant alleges that whilst in employment she was subjected to sexual harassment and discriminatory acts because of her gender and age. The complainant’s complaints were ignored and there was no procedure in place for her to follow which resulted in her constructive dismissal. The complainant is also alleging that she did not receive a statement of employment nor did she receive a minimum notice payment. The complainant has also lodged complaints in relation to a number of breaches of the Organisation of Working Time Act, 1997.

The complainant was repeatedly and seriously sexually harassed by the respondent in her place of employment.

The respondent took advantage of her vulnerability in terms of age when harassing her.

When the complainant rejected the said harassment her working hours were cut.

The respondent had no appropriate policies in place in relation to Dignity at Work or Grievances that could be followed by the complainant.

The complainant was therefore left with no option but to resign and therefore was constructively dismissed.

The complainant was not furnished with a statement of employment, did not receive her entitlement as regards Sunday working, annual leave, public holidays or breaks. The complainant was not paid any minimum notice payment.

The complainant was initially employed on a casual working basis and only became regular on 23 December 2017.

The respondent denies any form of sexual harassment in relation to the complainant.

The respondent would engage in banter in the kitchen and at busy times would shout to be heard.

The complainant’s version of events is exaggerated.

The complainant left employment of her own volition and sometime later sent the respondent a text looking for her job back.

The respondent accepts that no staff handbook was issued and that some holiday pay is due. Staff did get breaks but no records were kept.   The complainant could receive a pay slip if requested.

The complainant was still in her final year at secondary school in September 2017. The complainant’s brother’s girlfriend advised her that there was a job vacancy for a kitchen porter in the restaurant where she was employed and the claimant commenced working there for a few hours per week. There was no documentation drawn up and the complainant was paid cash in hand.   Some time later the employment became more regular with the complainant working in the kitchen on Friday, Saturday and Sunday of each week. Later still the claimant was requested to attend food markets where the respondent sold produce. The restaurant itself is not large and is owned by a married couple. The husband does most of the cooking and it is against him that the complaints of inappropriate behaviour are made.

The complainant in evidence stated that the first incident of inappropriate behaviour occurred at the end of October 2017 and continued thereafter. These incidents are summarised as follows:

Incident 1.

The respondent has a storage container about a 5-minute drive from the restaurant. The complainant accompanied the respondent and another employee in a van to the container. The complainant said that the respondent put his hand on her leg whilst driving the van and made remarks about “lovely legs”. The complainant pushed his hand away.

Incident 2.

The complainant performed her washing-up duties in a small back kitchen. From November onwards the respondent, while passing through this kitchen, would rub his body against her from behind and place his hands on her hips at the same time.

Incident 3.

The respondent was prepping meat to be put in a marinade. The respondent demonstrated how this was to be done by placing his hands on top of hers and dipping the meat in the marinade. The respondent then began to tenderise some meat by hammering it and at the same time moving his body in a sexually suggestive manner.

Incident 4.

One of the waiters was from Bangladesh and in December the respondent asked the complainant if she would prefer an Irish boyfriend or a Bangladeshi boyfriend as he (the respondent) would be stronger than the waiter.

Incident 5.

The respondent attended food markets and sold produce there. In October the complainant accompanied the respondent and his daughter to a market without incident. In November the complainant travelled alone with the respondent to a weekly market in Dublin. The respondent referred to the complainant as his girlfriend and “his bit on the side” in front of other stallholders. He also made remarks that she was “sexy”. On the way home in the van the respondent put his hand on the complainant’s leg and she pushed it away. The respondent referred to her as “chicken”.

Incident 6.

In January the complainant and another male colleague drove with the respondent in the van to the storage container to put away the Christmas decorations. The colleague stayed at the van removing the articles and the complainant and respondent brought them to the container. Inside the container the respondent grabbed the complainant from behind and touched her body. The complainant turned around and struggled with the respondent.   He pinned her against shelves and rubbed his body against her. She eventually freed herself and left the container. The respondent laughed and said that she was not strong.

Incident 7.

The respondent resided with his family over the restaurant. In January / February 2018 this living area was being re-decorated.   One evening the respondent asked the complainant if she would like to see the re-decorating and the complainant agreed as she believed that the respondent’s daughter was upstairs with friends. The respondent showed the complainant into the daughter’s bedroom and the complainant realised that the daughter was not in fact present. The respondent came into the room behind her and locked the door.   The respondent pushed her against the wall, tried to kiss her and rubbed his body against her. The complainant managed to push him away after telling him to “cop on” to himself. The respondent then unlocked the door and the complainant left.

Incident 8.

In early March the respondent texted the complainant with her hours for the following day. The complainant responded thanking him.   The responded replied “ok babe see you xxx”. He further texted that he was serious about her. When the complainant arrived at work the following morning the respondent asked about what the age gap between them was.   The complainant said that she was only a child and the respondent responded with a remark about the complainant’s intimate personal life. This upset the complainant so much that she went home sick at 1 pm. The complainant was taken off the rota for two weeks.

Incident 9.

On the day that the complainant resumed work the respondent shouted at her accusing her of breaking some fish plates. The complainant denied this and the respondent said that he would check the cameras and that it would come out of her wages. The complainant was upset by this and again left the premises. When the complainant texted the wife to explain the reason for her actions she was advised to report for work at 7 am the following day and to apologise to the respondent for leaving.

Incident 10.

The complainant’s mother unfortunately passed away about a week later. The complainant took time off as there was a younger brother at home to look after. After her return the respondent was putting some items up in the attic with the assistance of some members of staff. He instructed the complainant to get a rubbish bag and then began handing her items from the attic for the bag. The respondent then brushed some bits of rubbish down into the complainant’s face.   When she complained he told her she should have seen what he was doing. The complainant decided that she was not going to put up with any further ill-treatment and did not return to work after 21 April 2018. The complainant felt unable to do anything else as there were no policies or procedures in place regarding issues of this type.

The complainant also referenced an occasion when the respondent took photos of the complainant when she was kneeling down and other occasions when the respondent would press close to her.

In his evidence the respondent denied acting in any way improperly or in the manner outlined by the complainant in her account of these incidents. As regards Incident 6, the respondent’s recollection was that there was always two staff members present in the container with him on that day and regarding Incident 7, he stated that he could not have locked the bedroom door as there was in fact no key for that door. In relation to the text sent to the complainant, as outlined in Incident 8, the respondent denied that it was meant to be sexual in any way. The respondent accepted that it was sent in the early morning and that it was possible that he might have had a drink after the restaurant closed but stressed that he was just acting in a friendly manner. As regards Incident 9, the respondent accepted that he was angry about the broken plates and had made the remark about money being taken out of the complainant’s wages but stated that the complainant had walked out of the workplace.   The respondent flatly denied deliberately throwing rubbish at the complainant as alleged in Incident 10.  

The respondent also said that he could be quick-tempered at times and say things in an off-the-cuff manner. He accepted that he could make remarks about somebody looking well and could have asked the complainant if she had a boyfriend. The respondent stated that the kitchen could get very busy at times and that he would have to shout in order to be heard. The area itself was quite small and people would touch up against each other in passing.

The head waiter gave evidence to the effect that he had no recollection of the Bangladeshi boyfriend remark as detailed by the complainant in Incident 4. He further stated that he had never witnessed any inappropriate behaviour by the respondent towards the complainant.

The person who had originally encouraged the complainant to work in the restaurant also gave evidence.   This employee worked in the kitchen preparing food on Saturdays and Sundays. She introduced the complainant at a time when the restaurant was short-staffed and that employment was initially on a casual basis.   The employee said that she had not witnessed anything in relation to the matters under complainant and further stated that the complainant had never spoken to her regarding the actions of the respondent. The employee also said that the complainant had spoken to her about two weeks after leaving the job about the possibility of returning and the employee had advised her to speak to the co-owner.

As noted the business is co-owned by a married couple. The wife also gave evidence which was mainly to do with the administrative side if the business. As regards the complainant, she confirmed that the employment was originally of a casual nature and that it became more regular as from 23 December 2017. She was aware of the incident where the complainant was reprimanded about the fish plates and the complainant walked out.   The witness had not seen the complainant break the plates and she later texted the complainant stating that her husband had not said that the complainant had broken the plates. The witness said that some weeks after the complainant had left the employment without notice she received a text from the complainant asking if there was any work available. The witness accepted that no contract of employment was issued and that just one payslip was issued to the complainant and that on request. The witness further stated that it was up to staff to write in their own working details and that the complainant was owed holiday pay. She also said that breaks were given except on extremely busy days but there was no record kept in this regard. As regards payment for Sunday, the witness accepted that the complainant was not paid any premium or compensated with time in lieu. The complainant had never requested a P45 form.

Complaint No. CA-00019233-001:

This is a complaint under the Employment Equality Act, 1998 in respect of sexual harassment, harassment, discrimination on the grounds of gender and age, victimisation and discriminatory constructive dismissal.

Section 14A of the Act states:

(1)    For the purposes of this Act, where –

(a)    an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of their employment by a person who is –

(i)                  employed at that place or by the same employer,

(ii)                the victim’s employer, or

(iii)               a client, customer or other business contact of the victim’s employer and the circumstances are such as the employer ought reasonably to have taken steps to prevent it,

                 Or

(b)    without prejudice to the generality of paragraph (a) –

(i)                  such harassment has occurred, and

(ii)                either –

(I)                  the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II)                it could be reasonably anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

In subsection (7)(a) of this section sexual harassment is defined as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature.

In the case before me the allegations contained in Incidents 1 to 8 constitute complaints of sexual harassment and the allegations in Incidents 9 and 10 relate to general harassment. The respondent flatly denies most of the allegations or disputes the motive attributed to them.

In dealing with the burden of proof required in such cases the Labour Court in Aer Lingus Ltd. v McConnell, (EDA1849) stated:

“The allocation of the burden of proof as between the parties is now governed by Section 85A of the Acts. This section provides a three-stage test. The complainant must first prove the primary facts upon which she relies in advancing her claim of discrimination. If the primary facts are proved, or are admitted, the Court must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination. If the first two limbs of this test are satisfied by the complainant the respondent must then prove, as a matter of probability, that the complainant was not subjected to unlawful discrimination.”

The initial burden thus falls in the first place on the complainant. There were no corroborative witnesses as regards the complainant’s version of events. Two employees of the respondent stated that they had not observed any of the behaviour alleged by the complainant with one of them, the head waiter, stating that he had no recollection of the event described in Incident 4. Most of the incidents of alleged sexual harassment involved just the two parties concerned. There is, however, independent verification in regard to Incident 8 which involved an exchange of text messages. This exchange commences with a text from the respondent to the complainant advising her of her working hours for the following day (albeit that the text appears to have been sent after midnight). The complainant replies saying Okay. The texts continue as follows:

“Ok babe c u xxx     (respondent)

“Goodnight D…….”   (complainant)

“G.n. you no like me ok I understand”

“Haha D…. ur so funny”

“No I’m serious”

“Serious about what”

“About you K….”

“I will see u tomorrow D…. goodnight”

“G.n. k….”

This is clearly an inappropriate exchange between an employer and an employee, all the more so when the age and gender of the employee are taken into account. In my mind it also casts doubts on the respondents assertions that nothing inappropriate had occurred between the parties. I find therefore that a prima facie case of sexual harassment has been established by the complainant. Thus the burden of proof falls on the respondent to prove that the complainant was not subjected to harassment. When questioned about this text the respondent stated that he may have had a drink taken when he sent the text. This does not explain or excuse his actions. The fact that other members of staff who are still employees of the respondent stated that they did not witness any inappropriate behaviour cannot be taken as proof that nothing ever occurred as, by and large, the incidents as described by the complainant did not involve those witnesses.   In considering these matters I am disregarding Incident 10 which appears to me as an occurrence that could have been accidental but I note that the respondent’s attitude to the complainant was off-hand. The respondent has failed to rebut this prima facie case. In arriving at this conclusion, I place particular emphasis on the respondent’s admission that there was no written policy in place setting out procedures for dealing with Dignity at Work / Discrimination / Grievances. On the balance of probabilities, therefore, I find that the complainant did experience actions and behaviour that come within the definition of sexual harassment and that the respondent was responsible in this regard.

The respondent did not have any policies or procedures in place in relation to dignity in the workplace or the processing of grievances. There is a major difficulty in circumstances such as this where the complainant is working in a small family concern and the person responsible for the harassment is the owner of that concern. The complainant did text the wife following the issue with the fish plates and remarked about people shouting at her.  As noted, in early March the complainant left the work premises following the events described in Incident 8. The complainant was not rostered for any duties until she returned to work two weeks later on 23 March when the incident with the fish plates occurred.   The complainant again left the premises during her shift. Following her exchange of texts with the wife the complainant resumed work the following day. The complainant’s mother unfortunately passed away suddenly on 29 March and the complainant took time off to deal with issues arising. The complainant returned to work on 20 April when Incident 10 happened following which the complainant did not return to work. I do note that the complainant texted the wife on 7 May apologising for not coming in to work and stating that she was available if there was any work. There was no follow-up by either party to this text.

Taking the totality of these events into account I find, on the balance of probabilities, that the main issue which caused the complainant to leave her employment was the harassment that she had experienced in the workplace and that consequently the complainant was constructively dismissed.  I therefore find that the complainant was discriminatorily dismissed.

Complaint No. CA-00019233-002:

This is a complaint under the Terms of Employment (Information) Act, 1994, to the effect that the complainant did not receive a statement of employment from the respondent.   Section 3(1) of the Act states that “an employer shall, not later than 2 months after the commencement of the employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment…” The subsection then specifies the details to be included in the statement.

It is accepted by the respondent that the complainant never received such a statement. The respondent pointed out that the complainant’s employment began on a casual basis and was only regularised around 23 December 2017. It is clear to me therefore that the respondent was in breach of the legislation and that the complaint is well founded.

Complaint No. CA-00019233-003:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973, to the effect that the complainant did not receive her minimum period of notice on the termination of her employment. Having found that the complainant was constructively dismissed it follows that she has an entitlement to payment for the notice period due to her. Section 4(2) of the Act states:

The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be:

(a)    if the employee has been in the continuous service of his employer for less than two years, one week

The complainant is therefore entitled to one week’s pay in lieu of notice.

Complaint No. CA-00019233-004:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive any compensation for working on a Sunday.

Section 14(1) of the Act states:

An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means….

The subsection details the alternative forms of compensation available to the employer.   In the case before me it is clear from the evidence of the parties that none of these forms of compensation was paid to the complainant for the Sundays worked by her.

The complaint form was submitted to the WRC on 17 May 2018. The relevant period for considering this breach is the six months prior to that date. I note that the complainant was not rostered for work for two weeks in March 2018 and was on compassionate leave in April before the termination of her employment.  The respondent stated that the complainant worked 6 Sundays after Christmas 2017.

Complaint No. Ca-00019233-005:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive her entitlement to breaks. On behalf of the respondent it was stated that staff did get breaks but that no records were kept by the respondent in this regard. It was conceded that on particularly busy days (such as Mother’s Day) it was not possible for staff to take breaks. The complainant stated that breaks were irregular and on some days she would have worked for more than 6 hours without a break.

Section 12 of the Act states:

(1)    An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2)    An employer shall not allow an employee to work for a period of more than 6 hours without allowing either him or her a break of at least 30 minutes: such a break may include the break referred to in subsection (1).

As no records were kept by the respondent that would enable them to refute the claims of the complainant I find this complaint to be well founded.

Complaint No. CA-00019233-006:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive her annual leave and public holiday entitlement. The respondent accepts that the complainant is owed payment in respect of annual leave which was not paid at the time as she left without notice. Payslips (which had not been furnished to the complainant whilst working with the respondent) were handed in at the hearing but it was accepted by the respondent that these could not be relied on as being accurate.  As noted, the evidence of the respondent was that the staff filled in their own records. There is therefore a complete lack of records for hours worked by the complainant apart from a photocopy of a handwritten record of the complainant’s hours from 23 December 2017 to 20 April 2018.

Section 19(1) of the Act states:

Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998) an employee shall be entitled to paid annual leave (in this Act referred to as ‘annual leave’) equal to –

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)    One-third of a working week for each month in the leave year in which he or she works at least 117 hours,

(c)     8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

There is also a lack of specific information regarding work performed on Public Holidays. It is known that the complainant was not rostered for work on 17 March 2018.   The records referred to above would seem to indicate that the complainant did not work on 25/26 December 2017 or on 1 January 2018. The complainant’s submission does not specify what public holidays the complaint is in relation to.

Based on the evidence before me I find this complaint to be well founded.

Complaint No. CA-00019233-007:

This is a dispute referred under the Industrial Relations Act, 1969, in relation to the absence of policies and procedures regarding grievances and dignity at work in the workplace. The complainant submitted that the failure to provide such procedures meant that there was no avenue open to the complainant to pursue the issues that occurred in her place of employment. The complainant further argued that in the absence of such procedures she had no choice but to consider herself constructively dismissed due to the actions of her employer.

The respondent accepted that there was no staff handbook in place and that there was an absence of policies and procedures of the type in question.

It is, of course, the duty of every employer to have in place a set of policies and procedures dealing with the matters of grievances and dignity in the workplace whereby issues such as harassment / sexual harassment can be identified and dealt with. In the case of small enterprises this can mean the utilisation of outside, qualified third parties to deal with matters that arise.

The issue of constructive dismissal is dealt with in Complaint No. CA-00019233-001 above.

Complaint No. CA-00019233-001:

This is a complaint under the Employment Equality Acts, 1998 – 2015. For the reasons set out above I find that the suffered sexual harassment / discrimination on the grounds of age and gender and that she was discriminatorily dismissed. I require the respondent to pay to the complainant the sum of €3,500.00 as compensation in this regard.

Complaint No. CA-00019233-002:

This is a complaint under the Terms of Employment (Information) Act, 1994. For the reasons outlined above I find this complaint to be well founded. I require the respondent to pay to the complainant the sum of €345.00 in this regard.

Complaint No. CA-000019233-003:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973, which, for the reasons outlined above, I find to be well founded. I require the respondent to pay to the complainant the sum of €86.50 in this regard.

Complaint No. CA-00019233-004:

This is a complaint under the Organisation of Working Time Act, 1997 in respect of the non-payment of a Sunday premium. It is accepted that the complainant was not paid this premium and therefore I find this complaint to be well founded. I require the respondent to pay to the complainant the sum of €180.00 in this regard.

Complaint No. CA-00019233-005:

This is a complaint under the Organisation of Working Time Act, 1997, which for the reasons outlined above I find to be well founded. I require the respondent to pay to the complainant the sum of €150.00 in this regard.

Complaint No. CA-00019233-006:

This is a complaint under the Organisation of Working Time Act, 1997, regarding annual leave / public holiday entitlements. For the reasons outlined above I find this complaint to be well founded and I require the respondent to pay to the complainant the sum of €290.00 in this regard.

Complaint No. CA-00019233-007:

This is a dispute under the Industrial Relations Act, 1969. The specific issue referred by the complainant was in regard to the absence of policies and procedures dealing with grievances and Dignity in the Workplace thus leaving the complainant with no avenue other than that of constructive dismissal. The issue of constructive dismissal has been dealt with in Complaint No. CA-00019233-001. I recommend that the respondent get immediate advice not only in relation to ensuring that there are adequate policies in place in the workplace to deal with the matters of grievances and Dignity in the Workplace, but also in relation to addressing the lack of documentation (payslips, breaks, holidays, etc.) that is apparent from this case.